Veterans Court Rejects VA’s Motion to Postpone Reimbursing Veterans for Emergency Medical Expenses Until VA’s Appeal to Federal Circuit decided

WASHINGTON – On January 24, 2020, the U.S. Court of Appeals for Veterans Claims (CAVC) unanimously denied the VA’s motion to stay VA’s obligation to implement the CAVC’s decision in Wolfe v. Wilkie requiring VA to reimburse veterans for emergency medical expenses incurred at non-VA facilities that are not covered by the veteran’s private insurance.

The VA’s motion sought to allow it to withhold all reimbursement payments from veterans until the VA appeals the CAVC’s Wolfe decision to a higher court and obtains a decision from that court — a period that is likely to take at least one year.

The Veterans Court denied the VA’s motion as part of the ongoing class action filed by the National Veterans Legal Services Program (NVLSP) on behalf of veterans Amanda Wolfe and Peter Boerschinger.

NVLSP, with the assistance of pro bono counsel Sidley Austin LLP, opposed the VA’s motion to postpone its obligation to comply with the CAVC ruling of September 9, 2019, that the VA’s 2018 reimbursement regulation violates the Emergency Care Fairness Act of 2010 (ECFA). The September 9th ruling requires the VA to begin reimbursing veterans for the emergency medical expenses they incurred at non-VA facilities that are not covered by the veteran’s private insurance.

As a result of the Court’s denial, the VA must act to reimburse veterans even though the VA intends to appeal to the Federal Circuit in an attempt to overturn the CAVC’s September 9th decision. On the same day of its denial of a stay, the Veterans Court also ordered

“that, within 14 days of the date of this order, the Secretary file an update with the Court outlining the steps that have been taken to comply with the Court’s September 9, 2019, order, including whether any claims have been adjudicated in compliance with that order and, if not, a proposed timeline for when adjudication will begin.”

“We applaud the CAVC’s quick response to compelling the VA to begin reimbursing veterans,” said NVLSP Executive Director Bart Stichman. “Many of the hundreds of thousands of veterans who are part of this class action have experienced great hardships due to VA’s wrongful refusal to reimburse any of these veterans for the last three and half years.

Based on the VA’s past estimates, compliance with Wolfe v. Wilke’s decision will require VA to pay from $1.8 billion to $6.5 billion in reimbursements to hundreds of thousands of veterans who have or will file reimbursement claims during the period from 2016-2025.

Background Information on the Wolfe and Boerschinger Lawsuits

• 09/10/2019 Federal Court Strikes Down VA Regulation Denying Veterans Reimbursement of Emergency Medical Expense
• 04/01/2019 – In Response to NVLSP’s Class Action Lawsuit, VA Admits It Misled Tens of Thousands of Veterans
• 1/02/2019 – NVLSP Files Class Action Lawsuit Accusing VA of Disseminating False Information To Veterans
• 10/30/18 – The 8-Year Battle Continues: NVLSP Again Sues VA Over Continued Refusal To Comply With 2010 Statute

Background on Staab Lawsuit

Six years ago, NVLSP appealed to the CAVC on behalf of veteran Richard Staab after the VA declined to reimburse him for any of the $48,000 he incurred for emergency open-heart surgery purely because of Medicare-covered part of the emergency care bill. In the CAVC’s 2016 landmark precedential decision in Staab v. Shulkin, it invalidated the VA regulation that prohibited reimbursement for any of the veteran’s emergency medical expenses merely because some, but not all of those expenses were covered by the veteran’s insurance.

The Court held in the Staab case that Congress intended in the ECFA for VA to step in as a “secondary payer” where other health care insurers cover only a portion of the cost of the veteran’s emergency treatment and the regulation violated this statute.

The Sept. 2019 ruling struck down the regulation that VA promulgated in 2018 to replace the regulation struck down by the CAVC in Staab.

Background Information on the Staab Decision

• 01/17/2018 – VA Finalizes Rule Requiring Payment for Non-VA Emergency Claims Under NVLSP Court Victory in Staab
• 11/29/2017 – Video: Staab v. Shulkin  – A Pivotal Case for Veterans
• 06/16/2017 – NVLSP Wins $2 Billion in Medical Care Benefits for Hundreds of Thousands of Veterans, Applauds VA Secretary’s Decision to Voluntarily Withdraw VA Appeal in Staab v. Shulkin
• 04/11/2016 – Court Rules That VA Has Shortchanged Veterans Since 2009 By Refusing to Reimburse Them for Emergency Medical Expenses Not Covered by Insurance

About NVLSP

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active-duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active-duty personnel by ensuring they have the benefits they have earned through their service to our country.

NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law. NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active-duty personnel with pro bono legal help when seeking disability benefits; publishes the nation’s definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information, go to www.nvlsp.org.